Griffin v. Clinton Green S., LLC.

• Decision Date: 31 March 2011
• Docket Number: Index No.: 14897/07
• Citation: 2011 NY Slip Op 34040
• Parties: LEON GRIFFIN, Plaintiff, v. CLINTON GREEN SOUTH, LLC. BOVIS LEND LEASE, INC. and BOVIS LEND LEASE LMB, INC., Defendants.
• Court: New York Supreme Court

2011 NY Slip Op 34040

LEON GRIFFIN, Plaintiff, v. CLINTON GREEN SOUTH, LLC. BOVIS LEND

LEASE, INC. and BOVIS LEND LEASE LMB, INC., Defendants.

Index No.: 14897/07

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX

April 6, 2011

March 31, 2011

Present: Hon. Mary Ann Brigantti-Hughes

Second Amended

Decision and Order

The following papers numbered 1 to 4 read on the below motions noticed on and duly submitted on the Part IA15 Motion calendar of :

Papers Submitted

Numbered

Defs. Clinton Green South. LLC Bovis Lend Lease. Inc., and

Bovis Lend Lease LMB, Inc.'s Affirmation in Support of Motion, Brief in Support,

and Exhibits. Trial Transcripts.

1.2

Pl. Leon Griffin's Affirmation in Support of Cross-Motion and Opposition to Defs.

Motion. Brief in Support, and Exhibits.

3.4

Defendants. Clinton Green South. LLC, Bovis Lend Lease, Inc., and Bovis Lend Lease LMB. Inc. (hereinafter -Defendants'"), move for an Order, pursuant to CPLR 4404. 4401 and 5501(e) , to (1) set aside and vacate the jury's verdict as to damages and dismiss the plaintiff's complaint based on legally insufficient evidence in support of the plaintiff's claims for common law negligence and Labor Law §§200, 240(1) and 241(6): (2) set aside and vacate the jury's verdict and grant a new trial on liability on the plaintiff's Labor Law §240(1) cause of action upon renewal of Defendants' opposition to plaintiff's motion for a directed verdict; (3) set aside and vacate thejury's verdict and grant a new trial on damages based on the plaintiff's improper summation comments and the court's refusal to charge the jury on mitigation of damages; (4) set aside and vacate the jury's awards for past and future lost wages, past and future lost health benefits, past and future lostemployer annuity contributions, future pension benefits and future Social Security benefits as unsupported by record evidence and against the weight of the evidence; (5) set aside and vacate the jury's awards for past and future lost wages, past and future lost health benefits, past and future lost employer annuity contributions, future pension benefits and future Social Security benefits as unsupported by record evidence and against the weight of the evidence, (6) set aside and vacate the jury's award for future pain and suffering as excessive and deviating materially from what would constitute reasonable compensation; (7) grant a stay of entry of judgment and a hearing on collateral source setoffs pursuant to CPLR 4545(c) and the structuring of the judgment pursuant to CPLR 50-B, unless the parlies can agree on those issues; and/or (8) granting Defendants such other and different relief as the Court deems just and proper.

Plaintiff, Leon Griffin, (hereinafter "Plaintiff"), opposes Defendants motion in its entirety and cross-moves for an Order setting aside the jury award of $0 for past pain and suffering as inadequate and against the weight of the evidence.

In the interest of judicial economy, the aforementioned motions and cross-motions have been consolidated by the Court and are disposed of in the following Decision and Order.

1. Factual Background and Procedural History

The herein action involves a claim by Plaintiff for personal injuries sustained on June 6. 2006, while plaintiff was working as a concrete worker at a construction project owned by defendant Clinton Green South, LLC. Plaintiff was allegedly working with another to disassemble a piece of scaffolding. Plaintiff's job was to stand on the ground and stack pieces of the scaffolding as it was being disassembled. At one point during his work. Plaintiff heard a "clanking"' noise, and was soon thereafter allegedly struck in the back by a fallen piece of scaffolding. Plaintiff testified that no representatives from Defendants told him to set up barricades or safety netting around or under the scaffold to create a "safe drop zone."

Plaintiff was thereafter taken to St. Vincent's hospital where he underwent a CT scan of his back, and was given medication for pain, including an "injection of a painkiller." The CT scanrevealed a moderate nuclear herniation at L4-L5, with moderate displacement of the dural sac. He was discharged the same day and advised to follow up with his orthopedist. An orthopedist, Dr. Aric Hausknecht, found positive results after administering objective range of motion tests of the back and lower extremities. A July 13. 2006 MRI of the lumbar spine revealed a disc herniation causing nerve root impingement. This condition remained the same two years later, as revealed in a 2008 MRI. Plaintiff was referred to a Dr. Paul Brisson, who recommended a microdiscectomy decompression surgery, performed a year later after approval, from the Workers' Compensation Board. Dr. Brisson opined that Plaintiff's "nerve damage" was"permanenf", and Dr. Hausknecht opined that Plaintiff's injuries were substantially caused by the June 6, 2006 accident. Plaintiff thereafter commenced this action asserting common law negligence and Labor Law §§200, 240(1), and 241(6).

The action proceeded to a jury trial against Defendants on March 8 through 24, 2010. At trial, Plaintiff produced no other witnesses to corroborate his account of this accident. Plaintiff testified that he continued to suffer from pain in the lower back and legs which render him unable to sit or stand for prolonged periods of time. A vocational rehabilitation counselor, Allan Provder. opined that Plaintiff was now barred from any sort of future employment as a result of his injuries. Plaintiff also presented expert testimony from an economist, Dr. Alan Leiken, who testified as to past and future economic losses.

At the close of Plaintiff's proof, the Court directed a liability verdict in Plaintiff's favor on the Labor Law §240(1) claim, and did not rule on Defendants' motion for a directed verdict dismissing the common law negligence and Labor Law §§200 and 241(6) claims. The jury returned a verdict in favor of Plaintiff in the total amount of $12,562,772, which was broken down as follows:

Past

Lost earnings:

$131,243

Lost health insurance:

$22,748

Lost annuity funding:

$20,414

Pain and suffering:

$0

Future

Lost earnings:

$3,127,091 over 39 years

Lost health insurance:

$1,835,711 over 39 years

Lost annuity funding:

$494,935 over 39 years

Lost pension funding:

$1,230,630 over 39 years

Lost social security:

$700,000 over 39 years

Pain and suffering:

$5,000,000 over 39 years.

Defendants now move, post-trial, for (1) an Order setting aside the verdict and dismissing Plaintiff's case as to the proximate cause issue based on legally insufficient evidence, or (2) an Order vacating the directed verdict on liability to the Plaintiff, which deprived the Defendants of an opportunity to contest the claim against them, (3) an Order vacating the jury's damages verdict and ordering a new trial on damages due to inadequate jury instructions and Plaintiff's improper and prejudicial summation, or (4) an Order vacating the jury's past and future economic loss, and future pain and suffering damages awards as excessive, unreasonable, and based on speculation, and (5) a hearing to determine payments made from collateral sources pursuant to CPLR 4545 and the structuring of the judgment under CPLR 50-B.

Plaintiff has opposed this motion, and cross-moved for an Order vacating the jury's award of $0 for past pain and suffering as inadequate and against the weight of the evidence.

II. Legal Standard of Review for Vacating, Jury Verdict

Under CPLR 4404(a),

The court may set aside a jury verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence in the interest of justice or where the jury cannot agree after being kept together for as long as is deemed reasonable by the court.

For a court to decide that a jury verdict is not supported by legally sufficient evidence, there must be no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499 (1978); Nicastro v. Park, 113 A.D.2d 129. 132 (2^nd Dept. 1985). Any defect in the plaintiff's case can be cured by the evidence presented on the defendants case in chief. Id. In determining whether a plaintiff's initial burden has been established, the Supreme Court is obliged to consider all of the evidence, including the proof adduced by the defendants which cures any defects in the plaintiff's case. See Bopp v. New York Elec. Veh. Tramp. Co., 177 N.Y. 33, 35 (1903). In considering such a motion, "the trial court must afford the parly opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Szczerbiak v Pilat, 90 NY2d 553, 556 (1997).

III. Defendants' Motions as to Liability

I. Defendants' Motion to Vacate Directed Verdict Entered In Favor of Plaintiff on his Labor Law §240(1) Claim

Defendants argue that the court should not have directed a verdict in favor of Plaintiff because factual issues existed as to his claims, and Defendants were deprived of an opportunity to contest the labor law 240(1) claims against them. Doing so violated CPLR 4401 as the directedverdict was entered at the close of Plaintiff's case, and before Defendants had an opportunity to present its case in full. Defendants argue that Plaintiff only had an uncorroborated, self-serving account of this accident, which presented a "classic" credibility determination for a jury to decide. Nieves v Five Bora Air Conditioning & Refrigeration Corp., 256 A.D.2d 106, 109 (1^st Dept. 1998) (where plaintiff is the sole witness to. the accident, summary judgment is inappropriate where the defendant has...